Overview of 2016-2017 Supreme Court Term

The new Supreme Court term begins this week.  Out on the trail, so many of you have told me that you enjoyed the case updates we sent out earlier this year that I thought we would circulate our thoughts on some of the more important cases the Court will take up this term.  So once again, here are the cases conservatives will care about this term.

First, a quick overview.  TomorrowOctober 4, the eight-member Court will hear the first arguments of its 2016-2017 Term.  So far, the Court has agreed to hear about 40 cases between now and April.  In a normal year, that is about half of the Court’s full docket in the term.  We will have to see, over the next few months, how many additional cases the Court agrees to hear.  Until a new Justice is confirmed, the eight-member Court will find it more difficult to get the necessary four votes to grant a petition and agree to hear a new case.  In fact, just this morning, the Court denied certiorari in what appears to be roughly 1,000 cases, clearing the decks from its summer break and preparing for the new term.  This is an interesting dynamic that could play into how the Term ultimately fills itself out.  

Similarly, the justices will not be inclined to leap into the more contentious issues with only eight members.  Ties are frustrating to litigants, unhelpful to lower courts, and do not further the ultimate goal of the Supreme Court in establishing nationwide uniformity of federal law. Keep in mind, a tie does not settle a legal issue for the entire country.    

And unless you have had your head buried in the sand, the presidential election overshadows the Court in a big way.  If Hillary Clinton is elected, and her nominee is confirmed, a majority of the justices would be Democrat appointees for the first time since the Warren Court in the 1960s.  On the other hand, if Donald Trump prevails and someone from his 21-person list—a list that includes numerous former law clerks to Justices Scalia and Thomas—joins the Court, then the precarious 5-justice conservative majority will survive.  But with three sitting justices over the age of 78, a President Trump or President Clinton will likely shape the Court even beyond Justice Scalia’s seat.  As I have said on the trail to many of you, this election is not about four years, it is about the next generation.   

So here we go; some of the cases I will likely profile include:

  • Bethune-Hill v. Virginia State Board of Elections, about whether the recent re-districting of the Virginia House of Delegates violated Equal Protection by amounting to a racial gerrymander. 

  • Salman v. United States, about the rules that govern the crime of insider trading, and whether a person can be guilty of insider trading without any personal financial benefit to themselves. 

  • Murr v. Wisconsin, a case about the line between ordinary government regulations and those that “take” a person’s property, requiring compensation under the Takings Clause. 

  • Trinity Lutheran Church v. Pauley, about whether a state that gives away scrap tire rubber for playgrounds can refuse to give scrap rubber to a church playground simply because it is affiliated with a church. 

  • Manuel v. City of Joliet, a case that will present a tort claim brought by a man who says he was jailed for 48 days on charges the police knew were false.  The question is whether this issue is governed by the Due Process Clause or the Fourth Amendment right to be free of unreasonable searches and seizures.